# Gaon Sabha v. Addl. District Judge and others

- **Citation:** (2007) 1 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-17
- **Case number:** Civil Misc. Writ Petition No. 5089 of 1988
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaon-sabha-v-addl-district-judge-and-others-40879
- **Pages:** 5

## Headnote

Sri Yogesh Kumar Saxena
Sri Anil Kumar Sharma
Sri A.K. Tewari
Sri M.C. Chaturvedi, Addl. C.S.C.
S.C.

Code of Civil Procedure-Order 21 rule22-objection against confirmation of
auction sale-beyond statutory period-can
be entertained if based on fraud or
ignorance of sale proceeding-1 Bigha
land
sold
for
Rs.
One-held-very
shocking-auction sale can not survive.

Held: Para 11

It is correct that mere inadequacy of
consideration is no ground to set-aside
the
auction
sale.
However,
if
the
consideration for which property has
been sold is shocking to the conscious of
the court then it is good ground by itself
to set-aside the same. Even in the year
1968 for one rupee even one square yard
of land could not be purchased. However
through the impugned auction one bigha
of land (equivalent to 917 square yard)
was sold for only Rs.1/-.
Case law discussed:
AIR 1997 SC-3
AIR 1979 Alld.-106
AIR 2006 SC-1458
1981 ALJ-684

## Text

1 All] Gaon Sabha V. Addl. District Judge and others
41
settled that the decision to dispense with
departmental enquiry can not be rested
solely on the ipse dexit to the concerned
authority..........Non holding a regular
enquiry in the back ground of the
allegations of malafide, was highly
unjustified and the ground record for
subjective satisfaction for non holding of
enquiry that no witness was prepared to
give evidence against the petitioner, was
nothing but a lame excuse and appears to
be a concoction.

In Deep Narain (Supra) it was held
by this Court as under:

"........the disciplinary authority has
power to dispense with the enquiry but
that decision can only be taken in case it
is satisfied that it is not reasonably
practicable to hold such enquiry. The
reasons are to be recorded in writing in
support
of
the
satisfaction.
The
disciplinary authority has no right to
dispense with the departmental enquiry
against the government servant is week
and likely to fail. The discretion which
has been given to the disciplinary
authority
to
dispense
with
the
departmental enquiry can not rest solely
on
the
whims
of
the
concerned
authority............."

12. Thus I am of the view that
disciplinary authority while exercising its
special
power
to
dispense
with
departmental enquiry proceeding at the
time of dismissing the service of the
petitioner has failed to strictly comply
with the provisions as provided under
Rule 8 (2) b of the Rules and failed to
record the reasonable ground, which is
highly unjustified and the impugned order
dated 17.8.2005 (Annexure No.5 to the
writ petition) passed by respondent no.5 is
liable to be struck down, consequently the
impugned order dated 9th October, 2005
passed by the respondent no.4 and the
order dated 12th December, 2005 passed
by the respondent no.3 (Annexures No. 7
and 9 to the writ petition respectively) are
also liable to be quashed.

13. Under above said facts and
circumstances of the case, settled law and
the observations made hereinabove, the
writ petition is allowed and the impugned
orders dated 17.8.2005 (Annexure No.5 to
the writ petition), the appellate order
dated 9th October, 2005 (Annexure No.7
to the writ petition) and the revisional
order
dated
12th
December,
2005
(Annexure No.9 to the writ petition) are
hereby quashed. The petitioner shall be
allowed to continue to work on the post of
Constable in Civil Police and will be paid
salary month to month, in accordance
with
law.
However,
the
concerned
authority would be at liberty to proceed
with the disciplinary proceedings, if so it
thinks proper against the petitioner in
accordance with law.

No order is passed as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2006

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 5089 of 1988

Gaon Sabha

...Petitioner
Versus
Additional District Judge and eighteen
others

 ...Respondents
42 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Counsel for the Petitioner:
Sri M.M.D. Agrawal
Sri V.K. Singh, S.C.
Sri Santosh Shukla

Counsel for the Respondents:
Sri Yogesh Kumar Saxena
Sri Anil Kumar Sharma
Sri A.K. Tewari
Sri M.C. Chaturvedi, Addl. C.S.C.
S.C.

Code of Civil Procedure-Order 21 rule22-objection against confirmation of
auction sale-beyond statutory period-can
be entertained if based on fraud or
ignorance of sale proceeding-1 Bigha
land
sold
for
Rs.
One-held-very
shocking-auction sale can not survive.

Held: Para 11

It is correct that mere inadequacy of
consideration is no ground to set-aside
the
auction
sale.
However,
if
the
consideration for which property has
been sold is shocking to the conscious of
the court then it is good ground by itself
to set-aside the same. Even in the year
1968 for one rupee even one square yard
of land could not be purchased. However
through the impugned auction one bigha
of land (equivalent to 917 square yard)
was sold for only Rs.1/-.
Case law discussed:
AIR 1997 SC-3
AIR 1979 Alld.-106
AIR 2006 SC-1458
1981 ALJ-684

(Delivered by Hon'ble S.U. Khan J.)

1. In this writ petition Hon'ble R.B.
Misra J passed several orders (on the
order
sheet)
from
10.8.2001
till
23.11.2004 in respect of service upon
respondents. District Magistrate and other
officials were also directed to effect
service and file affidavit of compliance,
which was accordingly done. District
Magistrate and Sub-Divisional Magistrate
were also directed to be made parties in
the writ petition. However at the time of
arguments on 2.8.2006 no one appeared
on behalf of the respondents except
respondent No. 14 Ram Swaroop one of
the auction purchasers on whose behalf
Sri A.K.Sharma learned counsel has
argued the case. Sri M.M.D Agarwal
learned counsel appeared on behalf of the
petitioner and learned standing counsel
represented the State authorities. On
2.8.2006 all the substitution applications
were allowed after hearing learned
counsel for the parties and judgment was
reserved (order on the order sheet).

2. This writ petition discloses a
shocking state of affairs. Agricultural land
belonging to the State and under the
management
of
the
Gaon
Sabha
admeasuring about 80 acres has been sold
in auction only for Rs.400/- for realization
of some costs payable by Gaon Sabha
petitioner to the respondents.

3. Respondents 3, 4 and 5 Ram
Narain,
Sadan
Sahkari
Samiti
and
Manphool obtained a decree of costs
amounting to Rs.410.20/- against Gaon
Sabha Makrandpur, district Etawah in O.S
No. 170 of 1964. For realization of the
costs, Execution case No. 95 of 1968 was
filed praying therein that for realization of
the
aforesaid
costs
Plot
No.
2/
admeasuring 32.15 acres and Plot No.
14/1 admeasuring 48.08 acres belonging
to Gaon Sabha concerned be attached and
sold.

4. The other contesting respondents
of this writ petition purchased the land in
dispute in auction on 28.11.1969. Gaon
Sabha filed objections under section 47
1 All] Gaon Sabha V. Addl. District Judge and others
43
C.P.C against the said auction on 11/12
February 1970. The objections under
section 47 C.P.C numbered as Misc. Case
No. 19 of 1970 were allowed by Munsif ,
Etawah, Court No. 5 through order dated
15.5.1981. The learned Munsif held that
price of Rs.1/- per bigha was shocking (80
acres come to about 400 Kuchcha bighas).
Trial court further held that execution
application was filed after one year of the
decree hence by virtue of Order 21 Rule
22 C.P.C it was necessary to issue notice
to the judgment debtor which was not
done (Before the amendment of C.P.C in
the year 1976 notice was necessary to be
issued if execution was filed after one
year from the date of decree. Through Act
No. 104 of 1976, the said period of one
year has been substituted by two years).
Against the said order Civil Revision No.
69 of 1981 was filed by Ram Babu and
Brij Bhushan Lal only (respondents 1A
and 2). The other auction purchasers
respondents were impleaded as proforma
opposite parties. A.D.J / Special Judge
(E.C. Act), Etawah through judgment and
order dated 25.7.1987, allowed the
revision, set-aside the order of the trial
court dated 15.5.1981 and rejected the
objections filed by Gaon Sabha through
its Pradhan under section 47 C.P.C hence
this writ petition by Gaon Sabha.

5. The first ground taken by the
learned A.D.J for allowing the revision
was that "from perusal of the objections
filed under section 47 C.P.C it is apparent
that the objection was filed by the
Pradhan on behalf of the Gaon Sabha in
his personal capacity and not in the
capacity of representative of Gaon Sabha
and the resolution to this effect was
neither passed nor copy thereof was
enclosed with the objections hence the
institution of the objection was illegal and
it must have been summarily rejected".
Learned A.D.J also referred to paragraphs
128 to 132 of Gaon Samaj Manual.

6. After holding that objections were
filed by the Pradhan on behalf of Gaon
Sabha objections should have been held to
be maintainable. Gaon Sabha is always
represented
by
Pradhan.
It
is
not
understandable that what the learned
A.D.J
meant
by
first
saying
that
objections were filed by the Pradhan on
behalf of Gaon Sabha and then saying that
objections were filed by the Pradhan in
his personal capacity. This observation is
self-contradictory. In any case even if
there was some technical flaw in filing the
objections its benefit could not be given
to the respondents to usurp the property of
the Gaon Sabha. The court is required to
be more concerned about the substance
than mere technicalities. The Supreme
Court in United Bank of India Vs.
Naresh Kumar AIR 1997 SC 3 has held
that suit filed by the Bank shall not fail
due to absence of signature of proper
officer in plaint. Same principle will
apply in the instant case also; even if it is
held that there was some defect in the
representation
of
Gaon
Sabha
as
mentioned in the application under
section 47 C.P.C. However I do not find
any substantial defect in the description of
Gaon Sabha in the application under
section 47 C.P.C. Gaon Sabha could sue
through Pradhan and it in fact filed
objections through Pradhan.

7. The other reason given by the
learned A.D.J Sri Narendra Singh was
that execution had been struck off in full
satisfaction on 5.1.1970 hence objection
under
section
47
C.P.C
was
not
maintainable. This ground is also not
tenable. Objections under section 47
44 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
C.P.C are quite maintainable even after
satisfaction of the decree. Moreover Gaon
Sabha had contended and it was accepted
by the trial court that it had no knowledge
of execution proceedings and objections
were filed as soon as Gaon Sabha came to
know about the said proceedings.

8. The third ground taken by the
learned A.D.J is that opportunity of
producing evidence should have been
provided to the decree holder and auction
purchasers. In this regard it is important to
note that no prayer for adducing evidence
was made by the decree holder and
auction purchasers.

9. The next ground taken by the
revisional court is that as auction
purchasers had been delivered possession
of the property hence sale could not be
set-aside. In this regard, reliance was
placed upon an authority of this court
reported
in
Abdul
Ghani
Versus
Mahendra Kumar and others AIR 1979
Alld. 106, wherein it was held that if a
stranger has purchased the property in
auction then after reversal of the decree
auction can not be set-aside. The said
principle is not at all applicable to the
facts of the instant case. In the instant
case, no prayer was made for setting aside
the decree in execution of which property
in dispute was sold. In the instant case,
objections against execution were filed
under section 47 C.P.C, which were quite
maintainable.

10. I am constrained to observe that
judgment and order passed by the
Additional District Judge is utterly illegal.
Each and every point taken by him is
against the settled principles of law.
Learned A.D.J did not say a single word
regarding the points on which sale was
set-aside by the trial court. Revision was
allowed on flimsy and imaginary bars
against filing of objections under section
47 C.P.C. The least, which can be said is
that learned A.D.J was predetermined to
allow the revision, dismiss the objections
of Gaon Sabha and confirm the auction
sale.

11.

It
is correct that mere
inadequacy of consideration is no ground
to set-aside the auction sale. However, if
the consideration for which property has
been sold is shocking to the conscious of
the court then it is good ground by itself
to set-aside the same. Even in the year
1968 for one rupee even one square yard
of land could not be purchased. However
through the impugned auction one bigha
of land (equivalent to 917 square yard)
was sold for only Rs.1/-.

12. As rightly observed by the trial
court the auction sale was also labile to be
set-aside for want of compliance of
mandatory provisions of Order 21 Rule 22
C.P.C. The sale was also liable to be setaside for non compliance of provisions of
Order 21 Rule 64 C.P.C which are quoted
below:

"Any Court executing a decree may
order that any property attached by it and
liable to sale, or such portion thereof as
may seem necessary to satisfy the decree,
shall be sold, and that the proceeds of
such sale,or a sufficient portion thereof,
shall be paid to the party entitled under
the decree to receive the same."

13. The attachment was in respect of
two separate plots hence it was essential
to sale only one of the two plots by virtue
of Order 21 Rule 64 C.P.C. In fact the
amount of Rs.400/- could be fetched by
1 All] Kantu V. Musaram and others
45
selling only one bigha of land. In the year
1968 average value of agricultural land in
U.P was about Rs.5000/- per Kuchcha
bigha. The Supreme Court in a recent
authority reported in Bala Krishanan Vs.
M.Konar AIR 2006 SC 1458 has held that
only so much portion of the property must
be sold which is sufficient to satisfy the
decree and it is not just a discretion but
obligation on court. Sale held without
examining this aspect is illegal (para 10).
In the said case, objections filed after ten
years of confirmation of sale were
directed by the High Court to be treated
objections
under section 47 C.P.C.
Supreme Court approved the veiw of the
High Court. In the said case also five
acres of land had been sold for Rs.4000/-,
which was termed as paltry sum by the
Supreme Court. It has been held by the
full benches of Rajasthan and Patna High
Courts in Phool Chand and another Vs.
Badri Prasad AIR 1953 Raj. 51 (FB) and
Baleshwar Chaubey Versus R.R.P Singh
and others AIR 1947 Patna 461 that
objections against sale under section 47
C.P.C can be filed even after confirmation
of sale if applicant shows that owing to
fraud or for other reason he was ignorant
of the sale proceedings preliminary to
sale. Similarly it has been held by this
court
in
Firm
Harvilas
Rai,
Deokinandan, Ranikhet and another VS.
Lucknow Resin Factory and others, 1981
ALJ 464 that if the sale is void ab initio
then objections regarding illegality may
be made even after sale is confirmed.

14. Accordingly I am of the view
that the order passed by the revisional
court is patently erroneous in law and
without jurisdiction.

15. Writ petition is therefore
allowed. Judgment and order passed by
the revisional court dated 25.7.1987 is setaside. Judgment and order passed by the
trial court dated 15.5.1981 setting aside
the auction sale is confirmed.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2006

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 27432 of 2004

Kantu

...Petitioner/Defendant
Versus
Musaram & others ...Respondent/ Plaintiff

Counsel for the Petitioner:
Sri J.P.S. Chauhan

Counsel for the Respondents:
Sri Shashi Kant Shukla

Code of Civil Procedure-as amended by
Act No. 22 of 2002-Amendment in Plaintafter 7 years when issues framed and
Trail Commenced-no reasons disclosed
for not taking this plea as earliest-when
suit instituted-once trail commenced it
should not be delayed-amendment-heldnot justified.

Held: Para 8

In
the
present
case,
it
has
been
specifically argued by the petitioner and
not disputed by the respondent that the
trial of the suit had commenced at the
time
of
filing
of
the
amendment
application and as such the proviso to
Rule 17 would be attracted and in the
absence
of
the
plaintiff-respondent
having been able to show that in spite of
due diligence, he could not have raised
the issue involved in the amendment
before the commencement of the trial,
allowing of the amendment application
would not be justified in law.